A grand jury indicted defendant for
13 crimes arising out of domestic violence against his partnerand her
son. After engaging defendant in a lengthy colloquy on the record, the trial
court accepted defendant's waiver of his right to a jury trial. Defendant and
his attorney signed a document entitled Waiver of Jury Trial, stating that defendant
waived his right to have a jury decide whether he is guilty of the crimes
charged and any sentence-enhancement facts. After a bench trial, the court
found defendant guilty of 11 of the charged offenses.

After defendant was sentenced, he
requested the appointment of a new attorney to assist in filing a motion for a
new trial. The trial court granted defendant's request and appointed new
counsel. However, rather than file a motion for a new trial, defendant filed a
motion to vacate his waiver of a jury trial. At the hearing on defendant's
motion, he explained that he was precluded from filing a motion for a new trial
and, therefore, filed a motion to vacate his waiver of jury trial instead.
Defendant argued that his waiver was not "intelligently, knowingly, and
voluntarily made" because he had not been informed that, if he waived his
right to a jury trial, he would also give up any ability to move for a new
trial were he to be convicted. The court denied defendant's motion, stating:

"[I]t is functionally impossible to notify somebody of
all implication[s] of a right of a waiver. The critical thing is they be
advised expressly of the ones that courts have considered significant enough to
make the validity of the waiver critical. * * *

"* * * [T]he motion for [a] new trial is a
very peripheral right. It is nowhere near the center of the right to a fair
trial on the law."

On appeal, defendant raises the same
argument he made to the trial court: Defendant did not knowingly waive his
right to a jury trial, because he did not know that if he waived that right, he
was also waiving his right to file a motion for a new trial. Defendant asserts
he would not have waived his right to a jury trial if he had known that he
would not be able to file a motion for a new trial. The state makes various
arguments about why the issue of waiver of a new trial is not properly before
this court on review; we reject those arguments without discussion.

The Oregon Constitution, Article I,
section 11, guarantees a defendant the right to a jury trial, though a
defendant "may elect to waive trial by jury and consent to be tried by the
judge of the court alone[.]" A waiver is an "intentional
relinquishment or abandonment of a known right or privilege." State v.
Meyrick, 313 Or 125, 132, 831 P2d 666 (1992).

ORS 136.535 regulates the right to a new trial in a criminal
case. That statute provides:

"(1) Except that a new trial may not be
granted on application of the state, ORS 19.430 and ORCP 64 A, B and D to G
apply to and regulate new trials in criminal actions.

"(2) The provisions of ORCP 64 F governing
motions for a new trial apply to and regulate motions in arrest of judgment in
criminal actions."

Thus, several, but not all, of the provisions of ORCP 64, the rule
governing the procedure for new trials, apply to and regulate new trials in
criminal actions. One of the omitted provisions is ORCP 64 C, which governs a
new trial in a case tried without a jury. ORCP 64 C provides:

"In
an action tried without a jury, a former judgment may be set aside and a new
trial granted on motion of the party aggrieved on any grounds set forth in
section B of this rule where applicable."

Thus, if a defendant waives the right to a jury trial, ORS
136.535 does not authorize the trial court to grant a defendant a new trial.

Defendant relies on State v. Clark,
220 Or App 197, 185 P3d 516 (2008), to argue that he did not waive a known
right when he waived his right to a jury trial. In Clark, the defendant
entered a guilty plea before the Supreme Court announced its decision in Blakely
v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), that a
defendant has a right to have a jury find facts that may increase the sentence
beyond the otherwise applicable maximum. Clark, 220 Or App at 199. The
defendant argued that, because he was not aware that he had the right to have a
jury determine sentencing facts, he did not validly waive the right to a jury
trial. This court held that, because there was no evidence in the record that
the defendant was aware that he had the right to have a jury determine
sentencing facts, he did not validly waive that right. Id. Defendant
relies on Clark to argue that, because there is no evidence in the
record that he knew that he was giving up his right to file a motion for a new
trial, he did not validly waive his right to a jury trial. Defendant's
reliance is misplaced. In Clark, we held that to waive a constitutional
right (that is, the right to have a jury determine sentencing facts), the
defendant had to know about the right itself, not about all possible
consequences of waiving the right.

The state suggests and we agree that
the issue in this case is similar to that in post-conviction review cases where
we have held that a defendant needs to be told only of the direct consequences
of his guilty plea, not of all the peripheral rights that could be lost. SeeGonzalez v. State of Oregon, 340 Or 452, 458, 134 P3d 955 (2006) ("As a
general rule, the courts have not required defense counsel to advise their
clients of the collateral consequences of a conviction as a matter of providing
constitutionally adequate assistance."). Another relevant line of cases
are those holding that, although defense counsel is required to advise clients
who are not citizens that a criminal conviction may result in deportation,
counsel need not advise clients about mandatory sex offender registration,
because it is a collateral, not a direct, consequence of a conviction. Rodriguez-Moreno
v. State of Oregon, 208 Or App 659, 664, 145 P3d 256 (2006), rev den, 343 Or
159 (2007); see alsoJones v. Cupp, 7 Or App 415, 419, 490 P2d
1038 (1971) (stating that effects such as loss of passport, loss of voting
privileges, and undesirable discharge are "too remote" to be required
to tell defendant).

We agree with the trial court and the
state that there is no requirement that a defendant must be advised that, by
waiving the right to a jury trial, the defendant also forgoes the right to move
for a new trial. Accordingly, because defendant knew that he was waiving his
right to a jury trial, his waiver was intelligently, knowingly, and voluntarily
made. The fact that he did not realize that he would not be able to file a
motion for a new trial were he to be found guilty by the court does not render
his waiver of a jury trialinvalid.

Affirmed.

1.If the issue
were a motion for a new trial, we would review that issue for errors of law. State
v. Cadigan, 212 Or App 686, 690, 159 P3d 348, rev den, 343 Or 223
(2007). Regardless of the standard of review, we would reach the same result
in this case.

"A former judgment may be set aside and a
new trial granted in an action where there has been a trial by jury on the
motion of the party aggrieved for any of the following causes materially
affecting the substantial rights of such party:

"B(1) Irregularity in the proceedings of
the court, jury or adverse party, or any order of the court, or abuse of
discretion, by which such party was prevented from having fair trial.

"B(2) Misconduct of the jury or prevailing
party.

"B(3) Accident or surprise which ordinary
prudence could not have guarded against.

"B(4) Newly discovered evidence, material
for the party making the application, which such party could not with
reasonable diligence have discovered and produced at the trial.

"B(5) Insufficiency of the evidence to
justify the verdict or other decision, or that it is against law.

"B(6) Error in law occurring at the trial
and objected to or excepted to by the party making the application."